## THEATTORTYGENERAL

PRICE DANIEL AUSTIN 

## II. TEXAS

ATTORNEY

GENERAL July 13, 1949

Hon. John Lawhon Administrator @pInion No. V-854

Texas Liquor Control Board Re: Austin, Texas Validity of a local option election inwhich the proposition submittedwas: "For (oragainst) prohibiting the sale of malt and vinous beverages not exceeding 14% by weight."

Dear Sir:

Your request for an opinion is in part:
"There is one county in this State which has legalized the sale of malt and vinous beveragesnot exceeding 148 by weight. An election was called in this county with the following propositions submitted to the voters 'For prohibiting the sale ofmalt and vinous beverages not exceeding 14% bg'weight' and 'Against prohibiting the sale of malt and vinous beverages not exceeding 1476 by weight.'

"Iwill appreciateyour valued opinion as to wether an election submitting the proposition as above statedwould be valid.!
Article 666~Sec. 40,V.P.C., provides specificallythe issueswhich will be submitted in any local optionselection. One such issue, as set out in the statute, reads:

"(b)

. 'Forlegalizing the sale of malt and vinous beverages that do not contain alcohol in excess of fourteen ~(14%) percenturn

by volume' and lAgainst'legaliilngthe sale of malt and vinous beverages that do not contain alcohol'in ntum bv volm'"

Article 666-4Oa, V.P.C., provides, inpart:

"Atany time within thirty (30) days after the result of any local option electionheld pur-Hon. John Iawhon, page 2 V-854

suant to the provisions of the Texas Liquor ControlAct has been declared, any qualifiedvoter of the county, justiceprecinct or incorporated town or city of such county inwhich such election has been held,may contest the said election in the District Court of the County inwhich such election has been held,which shall have -inal and exclusive jurisdictionof all suits to c( mtest such election.

. . .and said court shall have jurisdiction to try and determine all matters connected with said election, including the petition of such electionand all Proceedings and'orders relating thereto, embracing final count and declaration and publication of the result putting local option into effect. and it shall have authoritv

lions relating to the legality ,alidityof said election

. . .and if it shall to determine ql and v appear from the evidence that such irregularities existed in bringing about said election or in holding same, as to render the true result of the election imnossibleto be arrived at. or verv doubtful of ascertaining, the court shall adjudge such election to be void, and shall order the proper officer to order another election to be held, and shall cause a certified copy of such judgmentand order of the court to be delivered to such officerupon whom is devolved by law the duty of ordering such election. It is further provided that all such cases shall have precedence in the District Court and appellate courts, and that the result of such contest shall finally settle all questions relating to the validity of said election and it shall not be permissible to again call the legality of said election in ouestion in any other suit or proceeding;and provided further, that if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusivelypresumed that said electionas held and the result thereof decMred, are in all respects valid and bindingupon all courts;

. . . . "(Emphasisadded)
This opiniondeals solelywith the question of irregularities insofar as they appear in the issues submittedand we do not pass upon any othermatters pertaining to the election.

It is the uniform holding of our courts that an election contest is the exclusive remedy of a citizenwho feels aggrieved, or harmed, by the results of an election. The invalidity, if any, of an electionmust be setup in a contest. The reason is thatHon. John Lawhon, page 3 v-a54

the Legislature, having setup this specialprocedure for the adjudication of such issues, that procedure is exclusiveand no other remedy is available.

The general rule is announced in 16 Tex. Jur. 142, Elections, Sec. 115:

"TheConstitutionand statutehave conferred~upon the Court's jurisdictionover election contests, and have provided a specialprocedure by which contestsmay be tried. This procedure is designed to be final and exclusive and the Courts have no authority to adjudicate cases which come within its purview otherwise than in the manner specified."

In Crawfordv. 19381, Maule, 114 S.W. 2d 696, (Tex.Civ.App.

suitwas brought seeking to have the sheriff and all other officerswhose duty itwas to enforce local options enjoined from enforcingan orderdeclaring the results of a local option election. The court denied the injunction on the grounds that the mode of contesting or determining the validity of an electionwas prescribedby statute and that that particularmode alone could be resorted to.

Agairi,in Tallv v. Benson 96 S.W. 2d 94, (Tex.Civ. App. 19x6),plaintiff soughta mandamus requiring the proper officers to grant him a permit alleging that a prior local option law was void because of certain irregularities. The Court said, after discussing other phases of the case:

"Thepropermethod of attackupon such an electionwas by a contest as authorizedby the statutes. Such method of attack upon elections has been held to be exclusiveand final.

. . . The method sought hereinwas a collateral attack upon such electionand cannot thereforebe properly entertained. That being true, the election of January 1936which at most was only voidable, and subject to be set aside, if at all, onlyby a proper contest thereof; established justice precinctNo. 1 as a dry area."
The Court refused to grant a mandamus, and the opinion is positive authority for the proposition that an attackupon an electionbecause of existing irregularitiescan be heard only in a contest proceeding.

Article 666-40 has been the subject of constructionby our courtsmany times. In election contests the courts have de-Hon. John Lawhon, page 4 V-854

clared that irregularities _-. in the issues appearing in the order calling the electionand irregularitiesappearing in the same issuesplacedupon the ballot void the elections.

In Hutson v. 1946), an election conSmith, 191 S.W. 2d 779, (Tex.Civ.App. test, the order calling the local option electiondid not state the issue to be voted on as is specifically requiredby Art. 666-40. The Court held that:

IIe

. . the Commissioners'Court mst itself issue the order for a local option election in the manner and form which the Legislaturehas made mandatory.

. . There is no hint in the record that the defective order had any effect upon the result of the election. But we are constrained to hold that the order did comply with the statute, that the statutewas mandatory, that consequently the orderwas void, and that the electionheld in response to a void order was itself void." (Emphasisadded) Again, inw v. w, 117 S.W. 2d 560, (Tex.Civ. APP. 1938), in local option election contestwherein the ballot did not contain the issue as set out by the statute, the Court held:
"TheLegislature havingprescribed the form of the issues to be submittedunder the conditions which obtained in said subdivision of Archer County, it was obligatory upon the part of the CommissionersCourt of said County to submit the issue thus specificallyprescribed.

"Weare reluctant to hold invalid such an electionas this, and thus set aside the will of a majority of the qualified voters who participated in the election,but under the authorities, it is our manifest duty to do so, even thoughwe are convinced that the results of the electionwould not have been different had the properballot been used.

. . . . DJ'
The above authorities in no way alter the general rule of prohibitinga collateralattackupon the results of an election. There can be no doubt but that Art. 666-40a places exclusive authority in the District Courts to determine all matters connectedwith the election including the petitions, orders, and ballots pertaining thereto. Irregularities in holdinga local option election likewise shallbe adjudged onlyby legal contest. It is significant that said statuteprovides that such a contestHon. John Lawhon, page 5 V-854

be brought within clared and upon a thirty days after the results have been defailure thereof the results of the electionas a matter of law are presumed to be valid and binding on all courts. Blaine v. State, 139 S.W. 2d 792 (Tex.Crim. 1940). Duran v. State, 158 S.W. 2d 720 (Tex.Grim. 1943); and Attokey General's opinionV-297.

The courts have held in instanceswhere an election has been calledwithout authority that such election is void ab initio. 1949); City ofAustin v. Thompson, 219 S.W. 2d 57 (Tex.Sup.

City of Dallas v. Dallas ConsolidatedElectric Street Railway Cornpang, 105 Tex. 337, 148 S.W. 292 (1912). These cases deal with the right and power for the particular electionto be held. Such a circumstance Is clearlydistinguishable from the situationpresent here. The errors and irreqularitiesraised in the present question are those specificallymentioned in Article 666-4Oa,V.P~.C.,and it is obviously contemplatedby saidArticle that irregularitiesof such a nature shouldbe determinedby an election contest, and are not of sufficientgravity to void the election ab initio.

In the light of the above authorities it follows that in the absence of an election called without authority or a proper election contest, the electionmust be presumed to be valid and the results of said electionmust be given full force and effect.

SUMMARY

The insertion of the word "weight"for "volume"and the ommission of I'alcohol" in a local option electionare irregularitieswhich can be challenged only in an election contest pursuant to the statutoryrequirements of Article 666-4Oa,V.P.C. Crawford v. Maple, 114 S.W. 2d 696 (1938); Tally v. Benson, 96 S.W. 2d 94 (1936). An electionnot having been contestedwithin the statutory timewill conclusivelybe presumed to be valid and binding on all courts. City of Austin v. Thompson, 219 S.W. 2d 57 (Tex. Sup. 1949); City of Dallas v. ConsolidatedElectric Street Railway Cornpane, 105 Tex. 337, 148 S.W. 292 (1912).Hon. John Lawhon, page 6 v-854

Yours very truly

ATTORNEY GENERAL OF TEXAS

By s,f Joe H. Reynolds Joe R.~Reynolds Assistant JHR:rt:pwb

APPROVED: s/Price Daniel ATTORNEY GENERAL